Freedom at sea

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Vasuki Nesiah*

The Amistad case deals with an 1839 slave-ship rebellion seeking to reverse the middle passage. The rebels reimagine freedom in counterpoint to liberal freedom and legal authority—a domain that intertwined emancipation and enslavement, the age of liberty and the Black Atlantic, the distance between continents and tides binding them together, redemption of American humanism and attacks on Black humanity.

In 1839, just off the coast of Cuba, 53 men and women who, in the previous six months, had been captured and transported across the Atlantic, bought and sold in a Havana slave market, and were being taken for work on a sugar plantation, broke free of their chains, killed the captain, and took control of La Amistad.¹They sought to direct the ship back across the Atlantic, heading East to Sierra Leone, reversing the middle passage. However, a series of storms and maritime misadventures thwart their plans, and instead they land on the American coast, are taken into custody by American officials and are to have their fate decided by American courts—courts that plot the denouement to this drama with a grammar of liberty and servitude, dissent and dispossession.²The court’s disposition towards the bodies at (and of) law are shaped in its fraught

* Associate Professor of Practice, NYU Gallatin. Email: [email protected]. This essay is the revised version of the talk I delivered in 2017 as the Keynote lecture of theConference of Law, Literature and Humanities Association of Australasia: Dissents and Disposition, Melbourne, Australia. My thanks to Maria Elander and others on the organising committee for that invitation.

My thanks also to Matt Craven, Catriona Drew and LRIL’s anonymous reviewers for their very helpful comments. This essay has also been shaped by my conversations with Adil Khan, Deval Desai and Chris Gevers in the context of their exploration of ‘learning from failure’. I have never felt better reconciled to owning the failures in my work.

1 In addition to the Amistad case record and the extensive secondary literature on the case, I also draw on the Steven Spielberg film on the Amistad rebellion and Robert Hayden’s poem theMiddle Passage as well as his larger oeuvre.

2 The infamous slave ship is, of course, the crucial stage for the drama of the slave trade and rebellion against what WEB DuBois dubbed ‘The most magnificent drama in the last thousand years of human history’: WEB DuBois,Black Reconstruction (Oxford UP, 2014) 727. For more on the slave ship and the Amistad rebellion, see S Smallwood,Saltwater Slavery(Harvard UP, 2007); M

London Review of International Law, Volume 7, Issue 2, 2019, 149–179 doi:10.1093/lril/lrz006

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navigation of the relationship between the abolition of the international slave trade, maritime law determining property rights to salvage at sea, Spain’s claims to the Amistad prisoners and the American constitution. As the case travels through the American court system, the Amistad rebels are declared juridically free, and a significant portion of the ship and its cargo pronounced the property of the Americans who took custody of the ship.³

Coming in the wake of the Atlantic revolutions in America, France and Haiti, this case takes place in an era often referred to as the ‘Age of Liberty’. The progeny of these revolutions include the abolition of the Atlantic slave trade but not the abolition of slavery; the jurisdictional issues that follow determine and delineate liberty in the Amistad case.⁴As the case unfolds, the ocean washes ashore meanings, dispositions and governance mechanisms, intertwining the themes of life and death, emancipation and enslavement, jurisdiction and extra- legality, the distance between continents and the tides that bind them together, the redemption of American humanism and the attack on Black humanity.

When we foreground slavery and the slave trade, freedom is at sea.

This paper seeks to unpack the domain of liberty authorised by ‘the law’ in the Amistad case, to better map its costs and exclusions including the lives and freedoms that can never be adequately reimagined or redressed. Grappling with the scale of those costs and exclusions entails grappling with the inevitable failure of redress, not only redress in court but redress within the terms of liberal freedoms.⁵This jurisprudence of failure is also a project then of inter- rogating, parochialising, and relativising those registers of liberal freedom and the law’s entanglements with it, while attending to the Amistad rebellion as an effort to reimagine freedom in that breach.⁶

Rediker,The Slave Ship(Penguin, 2007); M RedikerThe Amistad Rebellion: An Atlantic Odyssey of Slavery and Freedom(Penguin, 2012).

3 For Judge Joseph Story’s opinion laying out the resolution of the Amistad case in the US Supreme Court in January 1841, seeThe United States, Appellants v. The Libellants and Claimants of the Schooner Amistad, Her Tackle, Apparel, and Furniture, Together with her Cargo, and the Africans Mentioned and Described in the Several Libels and Claims, Appellees40 US 518 (1841).

4 This is one of two companion pieces foregrounding racial capitalism in analysing the abolition of the international slave trade. The sister article probes contemporary international criminal legal histor- ians’ depiction of the tribunals ‘implementing’ the abolition as the origin story of international courts, and as heralding ICL’s colour-blind humanist future. See V Nesiah ‘Crimes Against Humanity: Racialized Subjects and Deracialized Histories’, in I Tallgren & T Skouteris (eds),The New Histories of International Criminal Law: Retrials(Oxford UP, 2019) 167.

5 As Saidiya Hartman puts it: ‘The failure of full recovery or recompense, the inability to fully occupy an imagined prior condition or to bridge the divide of the split subject, is what drives redress and deems it inadequate.’ S Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America(Oxford UP, 1997) 75.

6 This paper foregrounds the plural conceptions of freedoms that jostle against each other in the context of a rebellion that exceeds and contests the liberal humanist investments of the ‘age of

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The leader of the insurrection was a young man named Senge Pieh⁷who was born in 1813 in the town of Mani in Upper Mende country, part of Sierra Leone—then a British colony.⁸ 40 years later Senge would find himself in Farmington Connecticut. Farmington: today, a dreary suburban enclave;

then, host to radical Amistad rebels, thecause celebreof American abolitionists.⁹ In 1839 Senge was captured for servitude and forcefully transported across the Atlantic. Three years later, having been declared a free man, Senge would climb aboard a ship named The Gentleman, and return to West Africa with American missionaries under sponsorship of the American Missionary Association. For 400 years, the middle passage was, for the majority of Africans, a one-way trip from Africa to the Americas—their status shifting, in the process, from freedom to servitude, from personhood to commodity. Senge’s return voyage was thus rare and hard fought; the result of a remarkable legal victory that followed an even more astoundingly victorious slave rebellion.¹⁰

In listening to the negotiation of freedoms in the Amistad case, the poet Robert Hayden becomes my travel companion—training my ear to better heed the plurality of freedoms imagined and reimagined in this journey.¹¹Hayden’s

liberty’, including the dominant voice of abolitionism. This paper learns from and thinks alongside the work of Hartman who listens for the insurgent notes in juba, popular dance and song traditions in North American slave communities as ‘coded texts of protest’ through the white noise of min- strelsy and constructions of black musicality. Ibid 70. In the domain of law, liberal freedoms become a kind of overwhelming static that crowds out the sound of ‘other’ freedoms.

7 Senge Pieh would come to be known as Joseph Cinque´ in the US as the drama of the Amistad unfolded. For more on the debates over his biography and post-Amistad trajectory, see J Yannielli,

‘Cinque´ the Slave Trader: Some New Evidence on an Old Controversy’ 10(1)Common-place(2009), available at http://www.common-place-archives.org/vol-10/no-01/yannielli/ (last visited 23 June 2019).

8 A Abraham,The Amistad Revolt: An Historical Legacy of Sierra Leone and the United States(US Information Agency, 1987) 4.

9 In the early 19th century, both sides of the Atlantic saw legal initiatives for the abolition of the slave trade. While slavery was still technically legal in Connecticut it was not a big slave holding state and the abolitionists in Connecticut quickly mobilised with abolitionists in New York and elsewhere to form a support group for the Amistad rebels.

10 Senge’s rebellion was motivated by a desire for freedom, not the agenda of Christian missionaries; thus when he returned to Africa he came to have a tense relationship with the Missionary Society and was negatively portrayed by some in the mission. As Iyunolu Osagie notes: ‘The Africans were good if they were receptive to Christianity and bad if they opposed it. Thus Senge was a bad n***because he didn’t cooperate with the missionary agenda.’ IF Osagie,The Amistad Revolt: Memory, Slavery, and the Politics of Identity in the United States and Sierra Leone(University of Georgia Press, 2000) 63. On some accounts, Senge is said to have crossed the Atlantic yet again to move to Jamaica. G Thompson, Thompson in Africa, Or, An Account of the Missionary Labors, Sufferings, Travels, and Observations, of George Thompson in Western Africa, at the Mendi Mission(Forgotten Books, 2017) [1852] 23.

11 R Hayden,The Angle of Ascent: New and Selected Poems(Liveright, 1975). With the exception ofThe Prisoners, all the Hayden poems referenced in this article are from this collection. These were originally published with a collection titledBallad of Remembrancein 1962 to much acclaim,

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Middle Passage opens up the history of the Amistad in ways that make alternative futures imaginable. He beginsMiddle Passagealerting us to the terrors that lay ahead:

Sails flashing to the wind like weapons,

sharks following the moans the fever and the dying;

horror the corposant and compass rose.

Middle Passage:

voyage through death

to life upon these shores.¹²

Hayden makes the compass that rises from being forged in those terrors hover in that indented line ‘to life upon these shores’. ThusMiddle Passage¹³as well as three of his other poems, includingThe Prisoners,¹⁴Frederick Douglass,¹⁵andO Daedalus, Fly Away Home¹⁶serve for me as both compass and anchor in following the extraordinary ambitions of Senge, the Amistad and the different visions of freedom and unfreedom that propel their story forward.

This article too moves forward with cross-currents in the footnotes that may variously interrupt, complement and circumvent the narrative arc of the main text and gesture to alternative crossings.¹⁷ From a discussion of the Amistad rebellion and the court case in the following section, I then move to a discussion of jurisdiction over legality of the slave trade and slavery from

including winning the Grand Prize at the (Langston Hughes chaired) Dakar World Festival. R Pool,

‘Robert Hayden: Poet Laureate’ 15(8)Negro Digest(1966) 39. The poems I lean on in this article to help me think with the Amistad case are in the last section ofBallad of Remembranceand linger with the experience of slavery, beginning withMiddle Passagewhere Hayden is also writing about the Amistad.

12 Hayden (1975) 118-23.

13 Ibid.

14 R Hayden,American Journal (Liveright, 1982) 18.The Prisonersis written towards the end of Hayden’s life.

15 Hayden (1975) 131.

16 Ibid 124.

17 As indicated in footnotes above, the methodologies adopted by this essay seek to hone a mode of listening to failure, including to the failures that haunt legal struggles that are ostensibly ‘about’

liberal freedoms. I may describe this as listening to ‘law’ in a minor key to indicate its affinity to what Peter Goodrich describes as ‘the textual record’ of ‘minor jurisprudences’—‘mixed in genre, being variously in the form of poems, narratives, plays, treatises and judicial decisions.. . .minor jurisprudences or alternative forms of legal knowledge that escape the phantom of a sovereign or unitary law. . .. Within such a history or pantheon of radical sources and practices of law would be included the rebels, critics, marginals, aliens, women and outsiders who over time repeatedly challenged the dominance of any singular system of legal norms.’ P Goodrich,Law in the Courts of Love(Routledge, 2013) 2.

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ocean to land, from state to state and port to port. I conclude with the different currents of resistance that haunt the Atlantic.

Hayden was a poet of Atlantic crossings—Poet Laureate in Senegal ten years before he became the first Black Poet Laureate in America—who looked both east and west when speaking of the shores of the Atlantic. This is double consciousness, doubled still further by the alternative horizons of freedom that are invoked in the cross-currents of the Amistad rebellion—the story of juridical freedom born from the marriage of liberty, trade and property on the high seas, and the story of freedom that is entangled in the ambition and risk of rebellion, of the project of return, of reversing the trip across the Black Atlantic

. . .it is a project, one may say, to make freedom a question.

T H E A M I S T A D R E B E L L I O N^{1 8}

In early 1839 Senge was captured and sold to Pedro Blanco, a Spanish slave trader.¹⁹Blanco purchased Senge Pieh and other men and women from across Sierra Leone, Liberia and Guinea until he had a profitable number for the trip across the Atlantic.²⁰ In April of that year, they sailed from Fort Lomboko, a slave-trading ‘factory’ in Sierra Leone on theTecora, a Spanish slave ship. The Tecoratook them from the Galinas coast across the Atlantic to Havana, Cuba.

Put on sale in a Havana slave market, Senge Pieh and 48 others were purchased by Jose Ruiz, a Spanish sugar plantation owner, for $450 each to work in Puerto Principe, another port city in Cuba.²¹Pedro Montez, another Spaniard bound

18 One could say that the story of Senge Pieh began almost four centuries earlier when Pope Nicholas V issuedDum Diversasin 1452 a papal bull authorising Portugal’s Alfonso V’s conquest and enslavement of ‘Sarcans and Pagans’ (i.e. Muslims and Africans) in the name of human civilization. See Papal Encyclicals Online, available at http://www.papalencyclicals.net/Alex06/alex06inter.htm (last visited 23 July 2019). This was followed by the 1454Romanus Pontifex, the 1493Inter Cateraand a range of other papal edicts authorising slave trading rights and colonisation to the profit of purse and soul, as allied with humanity, not against it. Almost 400 years later, the terms of this alignment were re-negotiated on board the Amistad.

19 Slavery was abolished across the British Empire in 1838 so the enslavement of Senge was illegal even at the time of capture.

20 The abolition meant that slave trading became both more risky and more lucrative. Merchants like Pedro Blanco were economic beneficiaries; they also became politically powerful through alliances with the Spanish crown and African leaders who fed the slave trade, such as King Siaka who aspired (not without being challenged) for control over the home regions of Senge. See Rediker (2012) 36-37, 46-47.

21 With the decline of sugar production in post-revolution Haiti, Cuba emerged as the world’s largest sugar producer and exploitative sugar production continued in different forms until Cuba’s 1953 revolution. When the Amistad Africans were traded in the Havana slave market, enslaved people of African descent made up 45 per cent of the Cuban population. Ibid 20. The Amistad case and the

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for the same port with four African children whom he had purchased, joined him. Chartering La Amistad, a Spanish Schooner with a crew of five, Ruiz, Montez and their 53 newly purchased men, women and children, set sail for what was expected to be a three-day trip to Puerto Principe in June 1839.

En route to Puerto Principe, Senge managed to unshackle himself and find the knives that were being transported for sugar plantation work. Using this stash of weaponry he and three other men led the other captured men and women in a revolt against their slavers.²²They killed part of the crew but spared the lives of Ruiz and Montez on condition that they navigate them back across the Atlantic to Sierra Leone. Yet a combination of navigational subversion by their Spanish captives and stormy winds threw the Schooner, battered and bruised, up the American coast. Sighted off Montauk Point, near Long Island by an American brig, The Washington²³ captained by Thomas Gedney, the formerly enslaved soon became the newly captured as Gedney and his crew commandeered the ship and towed her back to New London, Connecticut and contacted the US Marshall. At the request of the Marshall, US District Judge Andrew Judson held a preliminary hearing and with a judgment reflecting the racially-calibrated ordering of the free and unfree, Judson ordered the release of Ruiz and Montez and ensured Senge and others were taken into custody for trial by the Federal District Court.

The Amistad Africans were imprisoned pending trial under colour of two warrants—a warrant of seizure that treated them alongside the ship’s cargo as objects capable of being forfeited as salvage (to the benefit of Gedney and his crew), and a warrant of arrest that treated them as subjects named in a criminal complaint, legal persons capable of criminal offence and liability for mutiny aboard the Amistad. The maritime law of salvage rewarded the salvor of an imperilled ship the economic value of the property saved.²⁴ Gedney filed suit

abolitionists’ call for a sugar boycott went to the heart of the crisscrossing Atlantic trade of sugar and slaves.

22 The other three were Faquorna, Moru and Kimbo; yet it is Senge who becomes most identified with the rebellion and, extraordinarily, after Harriet Tubman and Frederick Douglass has become ‘the third most recognizable person of African descent associated with histories of slavery and resistance’.

Ibid 1.

23 The life and work ofThe Washingtonmap American colonial and slave history. After the Amistad capture it went on to play a role in the Mexican-American war and the annexation of Texas; in the last phase of its life it was commandeered by confederate forces in the American civil war. See ‘Coast and Geodetic Survey Ships: Peter G. Washington’,NOAA History, 8 June 2006, available at https://

www.history.noaa.gov/ships/washington.html (last visited 23 June 2019).

24 Admiralty law seeks to incentivise rescue at sea by rewarding persons who assist ships in peril and recover endangered cargo. Assistance and recovery can be treacherous ventures given the risks from piracy and bad weather so the law allows the rescuers to be compensated with a value commensurate to the property saved. The rules regarding salvage were consolidated in an international treaty in

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listing his salvage dues for ‘fifty-four slaves, to wit, fifty-one male slaves, and three young female slaves, who were worth twenty-five thousand dollars’.²⁵The economic value of slaves and would-be-slaves see-sawed between property and personhood in ways that were reflected in the ledgers of salvage awards and insurance claims. Slave owners took out individual life insurance for slaves they deemed to have skills they particularly valued; in other cases they might rely on general property insurance bundling slaves with machinery and other plantation property.²⁶Gedney likely calculated his salvage dues for the Africans on the Amistad on the basis of the $21,300 insurance taken out by Ruiz and Montez for the men, women and children they had on board; they had also insured their accompanying cargo for approximately double that amount.²⁷ These con- founding entanglements of insurance markets and slave markets, object and subject, bondage and freedom, offer a window into the complicated political economy of racial capitalism in the US in the mid-19th Century. The legal geography reflected these economic and political complexities; slavery was legal in some states and illegal in others with varied laws and practices about cross-state enforcement, and varied levels of social mobilisation regarding abolition. While the Federal government had deferred to the states to define their own regimes regarding the legality of chattel slavery, an increasingly vocal movement for federal abolition was gaining momentum. In some cases, these movements worked in solidarity with Black freedom struggles; in others, they crowded them out or ignored them and saw white abolitionists as the face of freedom struggles. These movements with all their diverse strands had strong roots in the North-East and quickly organised to provide legal counsel for the Amistad rebels.

1910 titled theBrussels Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea, which was adopted in September 1810 and entered into force in March 1813, available at https://www.loc.gov/law/help/us-treaties/bevans/m-ust000001-0780.pdf (last visited 2 July, 2019). The basic principles of this instrument are extended in a new treaty The International Convention on Salvage(1989) 1953 UNTS 165.

25 See NOAA Office of Coast Survey, ‘Coast Survey’s Little Known Role in the Case of the Amistad’, NOAA Office of Coast Survey Blog, 12 November 2014, available at https://noaacoastsurvey.word- press.com/2014/11/12/coast-survey-amistad/. See also ‘Libel of Lt. Thomas R. Gedney’, 29 August 1839, National Archives, available at https://www.docsteach.org/documents/document/gedney-libel (last visited 6 July 2019).

26 For an online ledger of insurance policies taken out by slave owners to protect their commercial interest in slave labour see theTreasury of Weary Soulswebsite, available at https://www.treasur- yofwearysouls.com (last visited 6 July 2019) compiled by Michael Ralph on the basis of an archive of 1300 policies. The website also contains data on the financial firms (many still in business) who profited from the slave insurance market.

27 ‘The cargo was insured for $40,000. Ruiz insured his forty-nine slaves for $20,000, while Montez insured the four children for $1,300.’ Abraham (1987) 2.

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The story of the Amistad rebellion sparked immediate public interest and became capital for entrepeneurs of various stripes. Within a week of the ship coming into port, the New York Bowery Theater staged a play about the rebellion; a market for artistic depictions of Senge and the other Amistad rebels ensured that Amistad swag spread up and down the East Coast; travelling ex- hibits carried similar purchase; and finally, the prisoners themselves were ex- hibited by the jail for daily admission fees.²⁸As with Steven Spielberg’s filmic version of Amistad, the commercial ventures of the time also claimed to be both emancipatory history and enlightened commerce, with goals that entwined pedagogy and profit.

In the Hollywood version of the Amistad story, Senge is the noble savage claiming his humanity through an impassioned interjection into court proceedings. Even while the formal court proceedings are unfolding, Senge stands up and declares:

Give us, us free!

(Opposing Counsel: If we are to have any semblance of order in court . . .).

Give us, us free! Give us, us free!

(Opposing Counsel: He cannot keep crying out . . .) Give us free. . .Give us, us free!. . .

(Opposing Counsel:. . .While I am questioning this witness!) GIVE US, US FREE!

GIVE US, US FREE!

The syntax of Senge Pieh’s speech is significant—the linguistic transgression marks a racial one; he should not be here; he is from elsewhere, he is at ‘home in Africa’. It is a transgression that marks him as outsider, a foreigner, speaking a language that is alien to him—not just English but the language of a law that is not his, the language of a legal system that renders his freedom contingent rather than axiomatic. The syntax conveys, then, a related ambiguity—is he asking the court to recognise a pre-existing freedom, giving juridical echo to an existential fact? Is that the correct order of recognition? The opposing lawyer invokes order in the court but what is the correct sequence for freedom and its recognition? What would be out of order? Is Senge asking the court to give him and his Sierra Leonean compatriots freedom where it is only the judicial pronouncement that makes it a fact? Or perhaps, he is saying give us to Freetown—transport us back to the capital of Sierra Leone, whose territory

28 Rediker (2012) 3.

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itself is named ‘Free’ as promise and prefix for jurisdictional rebuke to the Black Atlantic.

In Spielberg’s movie, this intervention by Senge is presented as evidence of his humanity (apparently such evidence is needed in Hollywood).²⁹ It is a pivotal moment in turning judicial opinion in his favour; it is by entering the script of liberty that his humanity becomes legible to the court. Thus, soon after this intervention, the judge delivers his ruling proclaiming the Africans from the Amistad as free. The ruling spoke to a freedom and humanity that was so fragile, and a law so powerful, that it could take men and women who had to prove their humanity by performing their liberty, and then render them free subjects by judicial fiat—legally ‘human’ and therefore endowed with ‘freedom, this liberty, this beautiful and terrible thing’.³⁰

The District Court found in favour of the Amistad rebels and declared that their enslavement and trade were in violation of a range of laws and treaties prohibiting the international slave trade.³¹The court ruled that as freemen the captured Africans had a legal right to use force for their freedom, and that the Amistad men and women had a legitimate claim to be returned to Sierra Leone at the expense of the US government. Following Maritime law’s rules on salvage, it also granted Gedney a third of the cargo aboard the Amistad as salvage property. The case was appealed to the Circuit Court, which affirmed the District Court’s holding in full. Unhappy with the ruling, the American President Martin van Buren ordered the Connecticut District Attorney to appeal the Circuit Court’s ruling to the US Supreme Court, which meant that the Amistad rebels remained in prison in Connecticut for several more months.

John Quincy Adams, counsel for the Amistad rebels in the Supreme Court, reminded the court that, in 1814, the US and Great Britain declared their op- position to the international slave trade in the Treaty of Ghent, and, in addition,

29 In his famous Fourth of July speech Frederick Douglass would ridicule this notion of proving one’s humanity. F Douglass, ‘What To the Slave is the Fourth of July?’,The Nation, 4 July 2012 [5 July 1852], available at https://www.thenation.com/article/what-slave-fourth-july-frederick-douglass (last visited 23 June 2019).

30 Hayden (1975) 131.

31 These included:An Act for the Abolition of the Slave Trade Actpassed by Great Britain in 1807, available at http://www.esp.org/foundations/freedom/holdings/slave-trade-act-1807.pdf (last visited 6 July 2019); the 1807Act Prohibiting Importation of Slavesthat made the importing and exporting of slaves into America a felony from 1 January 1808, available at http://abolition.nypl.org/essays/us_

constitution/5/ (last visited 6 July 2019); and the 1817Anglo-Spanish Treatywith each country agreeing to restrict the slave trade into its colonies, available at http://liberatedafricans.org/history.php?kid¼11-11-922850 (last visited 6 July 2019).

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that Spain and Great Britain had done so in treaties in 1814 and 1817.³² Furthermore, he noted, in 1815, that the Congress of Vienna, representing almost ‘all the Powers of Christendom’, declared that the age of liberty required that the ‘august Sovereigns’ gathered there should seek to end the trade by em- ploying ‘all the zeal and perseverance which is due to so noble a cause’ and communicating such commitments ‘to Europe, and. . .all civilized countries’.³³ While the Supreme Court declined to find the US responsible for returning the Amistad rebels to Africa at US government expense, the Court affirmed the lower court ruling that they were free men and women. Abolitionists celebrated the outcome of the Amistad case as heralding a new era of liberty on the Atlantic.

This legal victory is framed as a success.³⁴Yet Adams’s navigation towards

‘success’ in his closing argument draws attention to how he artfully locates success in the fault line between justice and liberty. ‘My final reliance for success in this case’, Adams argued, ‘was on this Court as a court of JUSTICE’ by which he means that it is a court that is committed to fundamental principles of legality, and recognises the role of courts in upholding the highest values embedded in the rule of law.³⁵ To that end, he then distinguishes between two lines of argument that were potentially available to advance the cause of the Amistad rebels. On the one hand, there were the arguments he made in court that highlighted how Ruiz and Montes contravened the laws of ‘all civilized countries’—in this case ‘the laws of Great Britain, of Spain, and of the United States’ and the inadequate legality of the papers submitted by Ruiz and Montes.³⁶ On the other, there were arguments that he says he ‘purposely avoided’ that were premised on the Africans’ claims on the basis of ‘first principles of liberty’ which Adams acknowledges ‘might well have been invoked in the argument of this cause’. ³⁷ Adams recognises, however, that liberty was the province of whiteness and in the hands of the Amistad rebels

32 ‘Argument of John Quincy Adams, Before the Supreme Court of the United States, in theCase of the United States, Appellants v. Cinque, and Others, Africans, Captured in the Schooner Amistad, by Lieut.

Gedney, Delivered on 24 February and 1 March 1841’, available at http://avalon.law.yale.edu/19th_

century/amistad_002.asp (last visited 23 June 2019) 118-20. For the Supreme Court decision, see 40 US 518 (1841).

33 ‘Argument of John Quincy Adams’ (1841) 118-19.

34 The ruling declared the Amistad Africans free and opened the door to their return to Africa. The case also mobilised and inspired abolitionist groups in the US; it brought home the ban against the international slave trade. In addition, legal victory proved pivotal for the American Missionary Society’s evangelical ambitions for Africa.

35 ‘Argument of John Quincy Adams’ (1841) 134.

36 Ibid 68-69, 92, 122, 134.

37 Ibid 134.

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‘self-emancipation’ would struggle to be seen as ‘something other than lawless violence’.³⁸ Ruiz and Montes (whose voices Hayden ventriloquises inMiddle Passage) express this sense that the emancipation of slaves was a paradoxical subverting of liberty to mean the opposite of what it was:

We find it paradoxical indeed

that you whose wealth, whose tree of liberty are rooted in the labour of your slaves should suffer the august John Quincy Adams to speak with so much passion of the right of chattel slaves to kill their lawful masters.³⁹

Ruiz and Montes understood that the ‘labor of slaves’ was the ‘strange seed’ that spawned the ‘tree of liberty’. How can right and law be on two sides of this question? Thus Adams’s reading of how the ‘powers of Christendom’ would filter into the Supreme Court decision-making, correctly assessed that ‘success’

relied on justice being adjudicated to uphold legality, not an axiomatic right to liberty. Adams was not confident that the court would recognise that axiom. He concluded instead that the court would find the Africans’ claim to liberty more compelling if it was dependent on the lawful sovereign interests of ‘all civilized countries’, and their attribution of rights through law to all those involved through deliberations in the Congress of Vienna, their agreements through treaty negotiations, and their decisions in legislative decisions to outlaw the slave trade. Thus he frames his case in ways that defer to the Court’s judicious accounting of this legal landscape in assessing ‘the liberty and the life of a large number of persons’ confident that the court is best equipped to give ‘due con- sideration of all the rights’ at stake.⁴⁰In finding success by cleaving justice and liberty in this way, Adams renders life and liberty dependent on legality, the liberty interests of the Amistad prisoners become derivative of the sovereign interests of Great Britain, Spain, and the US.

The ‘success’ of Adams’s legal victory is that he offered the court a path to situating its decision not as an alliance with lawless black self-emancipation, but

38 Adams observes that Gedney and other US officials had a racial sympathy with Ruiz and Montes, and a concomitant racial alienation from Senge, Grabeau and his other collaborators whom they saw as ‘savage, heathen barbarians’ with ‘uncouth and barbarous names’. Adams advocates a redemptive white-washing by renaming Senge and Grabeau, as Harmodius and Aristogiton, the Athenian heroes of democracy, to reframe, by association, the Amistad rebellion from ‘lawless violence’ to an upris- ing against tyranny. ‘They too resorted to lawless violence, and slew the tyrant to redeem the freedom of their country. . .. Cinque and Grabeau are not slaves. Let them bear in future history the names of Harmodius and Aristogiton.’ Ibid 86-87.

39 Hayden (1975) 123.

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as lawful respect for the ‘August sovereigns’ of civilized nations; he could not render the Amistad prisoners human except through this legal recognition. As if she were the ironic co-counsel to Adams in the Amistad court proceeding, Samera Esmeir argues that the law ‘must first identify dehumanized subjects to necessitate the resort to its humanizing redemptive power’ to create room for

‘law’s power of constituting humanity’.⁴¹In the Amistad case, Adams invited the Supreme Court to take up that power; he builds a case, judicious argument by judicious argument, for the court to see its role as the legal representative of

‘all civilized countries’ having a juridical responsibility to redeem the humanity of the Africans in the dock in the name of justice. This required dehumanised Africans, not subjects who were axiomatically free but subjects awaiting that redemptive juridical intervention.⁴²If this juridification constitutes the build- ing blocks of Adams’s success in court, there is a suggestion here that this juridification also presages the domain of failure giving rise to humanitarianism, and arguably, human rights.

P R O H I B I T I O N O F T H E I N T E R N A T I O N A L S L A V E T R A D E : J U R I S D I C T I O N O V E R T H E H U M A N

Human rights historian Jenny Martinez argues that the mid-19th century court cases on the prohibition of the slave trade were of pivotal importance in birthing human rights and that their significance has been widely overlooked.⁴³Indeed she sees these transnational courtrooms positioned on both sides of the Atlantic as offering a salutary prehistory to the work of the International Criminal Court today.⁴⁴Long before the ICC, the ad-hoc tribunals and even Nuremberg, there

41 S Esmeir, ‘On Making Dehumanization Possible’ 121PMLA(2006) 1544, 1547.

42 They do not exist as free prior to their legal recognition: ‘The Law’s power of constitution when it takes over (and it does not always take over), can result not only in new birth but also in past absence; indeed, it must define a prior absence, for otherwise there will be no occasion for the operation of the law.’ Ibid 1547. What would the Amistad rebels be if they were not redeemed by the Abolition laws of 1807, without the Treaty of Ghent or the Congress of Vienna—in other words, if they were not in the jurisdiction of what Adams refers to as ‘Christendom’ or ‘Europe, and of all civilized countries’? Their prior state, prior to coming into these redemptive jurisdictions, was then, by definition, unfree. Thus the redemption of the Amistad rebels’ liberty gets intertwined with the colonial and racial logics of ‘Europe, and of all civilized countries’. ‘Argument of John Quincy Adams’ (1841) 118-19.

43 Martinez (2012). For an illuminating discussion of some of the cases that came before the Commissions, including the complex interplay between the legality of the circumstances in which an alleged slave trading ship was apprehendedv.the legality of the circumstances in which slaves were apprehended, see E Haslam, ‘International Criminal Law and Legal Memories of Abolition:

Intervention, Mixed Commission Courts and “Emancipation”’ 18 Journal of the History of International Law(2016) 420.

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was a network of admiralty tribunals on both shores of the Atlantic that convened hearings, investigating ships hauled in under allegations of illegal slave trading. If the courts determined that these ships were in fact participating in the illegal slave trade, and had been legally apprehended, the courts awarded some portion of the value of their ships and cargo as prize to those seamen or naval officers who brought them in. The treaties, in effect, adapted a prize law regime designed for the capture of enemy ships to the arena of ships illegally trading slaves.⁴⁵In such cases, where a ship was apprehended legally according to the terms of treaties between European powers, those captured on board for slavery were freed.

Despite the declarations of the Congress of Vienna, the international slave trade was not a violation of the law of nations at this point so the mandate and powers of these courts were based exclusively on the terms of the relevant bilateral treaties. The tribunals began to be convened after passage of the Abolition of the Slave Trade Act in Great Britain in 1807, and operated for diverse terms in a range of locales until 1871. Martinez describes their work ‘as enforcing treaties designed to eliminate the transatlantic slave trade’ and celebrates the officers running these courts as unsung heroes who were driven by ‘genuine moral and humanitarian zeal’ for their contribution to ‘the effective suppression of the transatlantic slave trade’.⁴⁶

These were civil tribunals not criminal ones and their value as precedent for contemporary international law is not in the details of their jurisprudence, but in the fact that they focused on the lofty terrain of ‘the human’; this ‘humanitarian zeal’ was the rationale that expanded their jurisdictional compass beyond the nation state. The slave trade, Britain argued, was a ‘crime against the law of nations’ and warranted adjudication by international tribunals. After Britain abolished the slave trade across the British Empire, it leveraged its im- perialist might to conclude bilateral treaties with the other (lesser or soon-to- be-lesser) imperial powers of the period to prohibit slave trading. Accordingly, treaties were negotiated and tribunals were instituted in Freetown, Sierra Leone (a British Colony), Havana, Cuba (a Spanish colony), Rio de Janeiro, Brazil (a Portuguese colony) and Surinam (a Dutch colony). After hearing over 600 cases, the Mixed Commissions employed their transnational jurisdiction to

44 For analysis connecting the dots between the juridification of humanity in the mid-19th century Atlantic, and human rights and humanitarianism in international criminal law today, including an extended engagement with Martinez and the mixed tribunals, see Nesiah (2019).

45 In a 19th-century precursor to the contemporary convergence of international humanitarian law and international criminal law, during the period of the Napoleonic wars, the British Navy invoked a provision of the laws of war that allowed wartime search and seizure of ships to determine if there were signs of slave trading.

46 Martinez (2007).

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free over 80,000 slaves. Martinez declares the abolition of the slave trade as

‘perhaps the greatest success story in the history of human rights law’.⁴⁷ Until the eve of Abraham Lincoln’s emancipation proclamation, the US refused to convene a hybrid court that would authorise British naval officers’

jurisdiction over American ships. However, as discussed in the previous section, alongside domestic legislative enactments such as the 1807 Act Prohibiting Importation of Slaves, lawyers in the Amistad case invoked arguments analo- gous to ‘universal jurisdiction’ by invoking multiple legal regimes and a pleth- ora of laws, treaties and proclamations of ‘Europe, and of all civilized countries’

prohibiting the slave trade.⁴⁸This was, of course, the era where the ‘universal’

was itself predicated on civilizational discourse; the invocation of ‘universal jurisdiction’ could become its own kind of entrapment.

InThe Prisoners, Hayden describes being trapped by jurisdiction:

Steel doors—guillotine gates—

of the doorless house closed massively.

We were locked in with loss.⁴⁹

Jurisdiction is law’s name for being ‘locked in with loss’. In antebellum America, the fortunes of the Amistad Africans would be partly determined by which harbour the ship was hauled into and the legal status of slavery in that particular state. While the slave trade was illegal across the Atlantic Ocean, the legal regime on land was a jurisdictional Swiss cheese. Slavery was legal in Connecticut in 1839 when the Amistad was towed in, but illegal since 1827 in the New York harbours to the South, and soon to be abolished (by 1842) in the Rhode Island harbours immediately to the north; it would not be abolished in Connecticut until 1848.⁵⁰State rights—as embedded in the pro-Slavery constitution drafted by the founding fathers of freedom—were intended as the

‘guillotine gates’ of jurisdiction, that ‘doorless house’.⁵¹ However, all along the Eastern seaboard, jurisdiction gets shaped not only by the legal architecture of the formal boundaries of statehood, but also by the ebb and flow of the

47 Ibid.

49 Hayden (1982) 18.

50 Slavery gets abolished in Connecticut in 1848. See ‘Slavery in Connecticut’,Slavery in the North, available at http://slavenorth.com/connecticut.htm (last visited 23 June 2019).

51 D Walderstreicher, ‘How the Constitution Was Indeed Pro-Slavery’,The Atlantic, 19 September 2015, available at https://www.theatlantic.com/politics/archive/2015/09/how-the-constitution-was- indeed-pro-slavery/406288 (last visited 23 June 2019).

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Atlantic Ocean and the interpretation of maritime law in freedom struggles such as that of the Amistad rebels. Thus jurisdiction proved porous, its walls structured through the dialectic between race on land and race at sea, slavery in the plantation and slavery on the ship, the ambitions of national authority and the ambitions of imperial authority.

As noted earlier, a historical irony of the effort to prohibit the slave trade was that chattel slavery was still legal in much of the US. The division between slave-traders and slave-holders, between transatlantic markets and the domestic ones, did important work in zoning the domain of unfreedom onto the ocean, and sanitising slavery on land. Walter Johnson unpacks this ideological work by tracing ‘an imaginary line of self-justification between

“slavery”, where slaves were sold only by happenstance, and the “market”

where every slave was always for sale’.⁵²This line delineates jurisdiction as not merely an instantiation of different legal domains, but as also connoting the holding of a line vis a vis the contradictions of political morality in that moment. It allowed the southern plantation to be cloaked in gentility, while the brutality of the slave ship was condemned; the line helped contrast the private sphere of patronage from the filthy lucre of the slave market; it is a line that foregrounds the deathly ‘middle passage’ in contrast to slave society on shore.

Moving out from America to the jurisdiction of the Mixed Commission tribunals that Martinez describes, we see ‘guillotine gates’ forged through colonialism’s cartography. These tribunals are located in the global south⁵³ but their judges are appointed by, and their legal authority is derived from treaties between, Great Britain and the other European colonial powers that controlled the territory—thus the court in Brazil is an Anglo-Portuguese Court, the court in Cuba is an Anglo-Spanish Court, the court in Surinam is an Anglo-Dutch Court and the courts in Sierra Leone were run by all these colonial powers and Britain. Thus Africans who were brought before these courts were to have legally legible political subjectivity shaped by whichever ‘doorless house’ had jurisdictional authority. Were they enslaved or free? Was it the law of the land or the law of the sea? And then which land? These mid-Atlantic courts had been authorised to recognise that these were free men and women—‘human’.

52 W Johnson,Soul by Soul(Harvard UP, 1999) 27. Also see W Johnson, ‘To Remake the World:

Slavery, Racial Capitalism and Justice’,Boston Review, 20 February 2018, available at http://boston- review.net/forum/walter-johnson-to-remake-the-world (last visited 23 June 2019).

53 The one potential exception was the proposed New York tribunal after the US eventually signed a treaty with Britain in 1862. That agreement would locate Mixed Commissions in New York, Cape Town and Sierra Leone; however the impact of the 1863 emancipation proclamation soon rendered the legality of the slave trade to the US moot.

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Later inPrisoners, Hayden says:

. . .I sensed the plea

of men denied: Believe us human like yourselves. . ..⁵⁴

Political subjectivity is dependent on a prayer: for this precarious legal recognition is constituted by the enactment of a ‘loss’ that accompanies the liberty promised in this jurisdiction. When Hayden places a colon after ‘of men denied’ he is signalling that dehumanisation is a necessary precursor to the clause that follows: ‘Believe us human’. The path to humanisation is itself dependent on the backdrop of denial, a dehumanisation born of the symbiosis of juridical and racial hierarchy. The Amistad rebels were not to get a hearing of their peers. Hayden slips ‘like yourselves . . .’ onto the next line to underscore the false equivalence and convey a break between ‘human’ and ‘like yourselves’; a signal that the entreaty to human camaraderie is mindful of the internal hierarchy in the category ‘human’ that is an ever-present codicil to that deferential genre of humanist prayer.

The image of the supplicant slave praying ‘am I not a man and a brother?’

was the logo and caption of theCommittee for the Abolition of the Slave Trade and gets emblazoned on Wedgewood pottery medallions that were sported by those who wanted to signal their support for the cause.⁵⁵The medallions used Black jasper for the slave praying with chained hands, and white ceramic for the lettering of the entreaty, reflecting the racial distribution of labour between the supplicants and those with the power to hear the slave’s plea and grant recognition. The Wedgewood medallion offers a pictorial register of Cinque’s per- formance of the plea and the racial scripts of European and American jurisdiction over their fate that locks slaves into the status of supplicants. In the spectacle staged by the Amistad case, the Supreme Court delivers the Amistad team’s legal success as a denouement to this drama. This division of labour between supplicant and judge calls forth what Frederick Douglass described as the ‘ridiculous’ arithmetic of what adds up to being human in this jurisdiction; it is an arithmetic that needs that racialised mechanics of juridical humanity and deferential prayer for the computation to work.⁵⁶The

54 Hayden (1982) 18.

55 A Hochschild,Bury the Chains: Prophets and Rebels in the Fight to Free an Empire’s Slaves(Houghton Mifflin, 2005) 128. Josiah Wedgewood, the Staffordshire pottery magnate, becomes a financial sponsor of the Committee. Worn as pins and pendants the medallion became a fashionable acces- sory for abolitionists and an early precursor of swag for a cause. Wedgewood’s friend Thomas Clarkson, a founder of the Committee for the Abolition of the Slave Trade, celebrated the medallion noting that ‘fashion which usually confines itself to worthless things was seen. . .promoting the cause of justice, humanity and freedom.’ See the entry on Josiah Wedgewood atThe Abolition Project, available at http://abolition.e2bn.org/people_33.html (last visited 23 June 2019).

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work of jurisdictional authority was not just to clarify the legal status of slavery, but also to call forth racialised identities, and to settle a complex regime of social relations between the ‘races’. The power to confer recognition involved the production of meaning and knowledge regarding ‘the human’, ‘humanity’, ‘crimes against humanity’, and ‘humanitarian purpose’. The courts, and the slaveholding and colonial states authorising them, were empowered to create, compute and adjudicate knowledge about what or who warrants the modifier ‘human’.⁵⁷

If the institutional arrangements for adjudication and enforcement were a central pillar of the liberty at stake in the prohibition of the slave trade, a second pillar was the rise of humanitarian sentiment. As we have begun to explore, humanitarian sentiment entailed an exercise of a particular kind of power to know, define and recognise ‘the human’ within the regime of law and political morality that was both backdrop and purpose for the abolitionists. Even as investment in the slave trade declined, there was a distinct but complementary rise in humanitarian outrage at the brutalities of the middle passage. Rather than a system that strengthened Christendom, the international slave trade was now seen as an embarrassment to be condemned and halted. The backdrop to the bilateral treaties that constituted the Mixed Commission courts was the declaration by the Congress of Vienna that condemned the slave trade as ‘re- pugnant to the principles of humanity and universal morality’. The principles of humanity and universal morality were translated, in the same clause, as a ref- erence to those of ‘civilized countries’, which it quickly parsed as ‘several European governments’ and finally (still in the same clause) as ‘all the Powers possessing colonies in different parts of the world’.⁵⁸ These tribunals

56 Approximately a decade after the Amistad ruling, Frederick Douglass’s Fourth of July speech of 1852 denounces the notion of proof: ‘Must I undertake to prove that the slave is a man?. . .The slave-holders themselves acknowledge it in the enactment of laws for their government. They acknowledge it when they punish disobedience on the part of the slave. How should I look to-day, in the presence of Americans, dividing, and subdividing a discourse, to show that men have a natural right to freedom? speaking of it relatively and positively, negatively and affirmatively. To do so, would be to make myself ridiculous, and to offer an insult to your understanding.’ Douglass (2012).

57 The work of these courts provides an important back history to today’s debates regarding the power and politics of human rights and humanitarianism in global governance. This is one dimension of

‘the dark sides of virtue’ with all kinds of dark arts authorised in the name of human rights or humanitarianism. D Kennedy, The Dark Sides of Virtue (Princeton UP, 2004). Or as Jacques Ranciere says: ‘which rights are superfluous here where we have so much, but needed over there where there is nothing but bare life—so we speak in the name of their human rights, sending rights like we may send clothes and medicine we no longer need.’ J Ranciere, ‘Who is the Subject of the Rights of Man’ 103The South Atlantic Quarterly(2004) 297, 307.

58 The Final Act of the Congress of Vienna Act XV, 64 CTS 453, available at https://en.wikisource.org/wiki/

Final_Act_of_the_Congress_of_Vienna/Act_XV (last visited 23 July 2019). Some cite the condemnation of the slave trade in this ancillary declaration annexed to the Vienna Congress treaties as the first expression of international humanitarian law and policies. Caroline Shaw links the Vienna Congress to contemporary

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were not just releasing men and women from servitude; they were doing so in the name of humanity. If Pope Nicholas had authorised slavery 400 years earlier in the name of Christian civilization, in the mid-19th century, many abolitionists argued against slavery in the name of Christian humanity—and many in the name of humanity as such, itself a product of civilization as it was known in imperial Europe. Ideas, practices and performances of humanism proved to be supple and multi-dexterous. They travelled so strangely and smoothly to defend slavery at one historical moment (defending humanity against the brutal cul- tures of the uncivilized), and to rescue slaves in the next (upholding humanity against the physical brutality of the transnational trade). This was, after all, the age of liberty. And the late 18th-century revolutions on both sides of the Atlantic already embodied a new sensibility regarding the sanctity of the human body and its secular freedoms—an era, as Lynn Hunt describes it, of ‘new bodies and selves’,⁵⁹ including ‘changes in the reaction to other people’s bodies and selves’.⁶⁰ As Hunt notes, the moral autonomy attributed to being a free human was not only an idea but also entailed an associated set of social practices regarding self-possession and selfhood on the one hand, and empathy and recognition of the equality of selves on the other. This is the liberal humanist vision of individualised ‘freedom’ that was enhanced and advanced by the prohibition of the slave trade.⁶¹

The freedom at play here was buffeted by the shifting winds of racial capitalism. Listen to Hayden (inMiddle Passage) on the dark jest of the cheer- fully named Amistad (‘friendship’) murderously transporting cotton-producing labour for the industrial weaving looms of Manchester:

Shuttles in the rocking loom of history, the dark ships move, the dark ships move,

refugee policy, as does Fabian Klose in relation to policies regarding humanitarian intervention. See C Shaw,Britannia’s Embrace: Modern Humanitarianism and the Imperial Origins of Refugee Relief (Oxford UP, 2015); F Klose (ed.),The Emergence of Humanitarian Intervention: Ideas and Practice from the Nineteenth Century to the Present(Cambridge UP, 2016). At the Vienna Congress, Britain’s investments in the abolition of the slave trade were intertwined with Britain’s colonial ambitions and, as both Shaw and Klose demonstrate, here too one can connect the dots between the Vienna Congress and contemporary humanitarianism’s entanglements with empire.

59 L Hunt, ‘The Paradoxical Origins of Human Rights’, in JN Wasserstrom et al. (eds),Human Rights and Revolutions(Rowman & Littlefield, 2007) 9.

60 L Hunt,Inventing Human Rights(WW Norton, 2007) 31-32.

61 This notion of freedom can be situated in relation to the changing economies of slavery. In his magisterialCapitalism and Slavery, Eric Williams demonstrates the pivotal role of slavery in enabling the industrial revolution and capitalist expansion, while also showing how advanced industrial capitalism gave rise to forces that contributed to the end of slavery. Thus abolitionist sentiment was fuelled by declining profits in Caribbean slave plantations. See E Williams,Capitalism and Slavery(University of North Carolina Press, 1944).

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their bright ironical names

like jests of kindness on a murderer’s mouth;

plough through thrashing glister toward fata morgana’s lucent melting shore, weave toward New World littorals that are mirage and myth and actual shore.⁶²

Admiralty law opened the oceans for the ‘thrashing glister’ of conquest and capital, for the different currents of Euro-American trade interests and property claims, including the transport and security of goods, people and ideas of liberty

‘in the rocking loom of history’.⁶³ Walter Johnsons notes that the ships that moved across the North Atlantic linked ‘the plantations of Mississippi, the counting houses of Manhattan, and the mills of Manchester as differentiated but concomitant components of a single system’.⁶⁴ This movement was the structural foundation of liberty, upholding the ‘mirage and myth’ propelling the ‘fata morgana’ of liberal freedom a la Hayden.⁶⁵ As the cycles of capital ploughed forward through the course of the 17th and 18th centuries, ‘turning black bodies into currency’,⁶⁶the political economy of slavery and the political economy of the slave trade had diverged. Moreover, the profit of the triangular trade in different commodities had also diverged. Cotton and sugar production were enabled by different geographies and different commercial imperatives.

Cuba, the world’s largest producer of sugar, continued to depend on an on- going influx of slave labour; disease was rampant in the Caribbean and slave life-spans were short. In contrast, in the continental US, a system of domestic servitude was emerging as a more cost efficient guarantor of reproducing labour for the cotton fields. Moreover, the British were particularly invested in con- trolling the seas to consolidate their imperial dominance in this period and were willing to invest considerable naval resources in patrolling the seas and adju- dicating compliance with the abolition of the slave trade. The language of

62 Hayden (1975) 121.

63 Ibid.

64 Walter Johnson builds on the work of Eric Williams, DuBois, Cedric Robinson and others with varying investments in traditions of Black Marxism to render questions of trade and political economy central to the story of the Black Atlantic. Johnson (2018). See also Williams (1944);

WEB DuBois,The Suppression of the African Slave Trade to the United States of America(Oxford UP, 2014); C Robinson, ‘The Atlantic Slave Trade and Atlantic Labor’, inBlack Marxism(University of North Carolina Press, 1983); W Johnson,River of Dark Dreams: Slavery and Empire in the Cotton Kingdom(Belknap Press, 2017).

65 Hayden (1975) 121.

66 L Porter, ‘Life Upon These Shores’,Poetry Foundation, 11 November 2015, available at https://www.

poetryfoundation.org/articles/70280/life-upon-these-shores (last visited 23 June 2019).

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liberty and humanity were critical vehicles for the production of legitimacy for these endeavours on both sides of the Atlantic. Thus maritime law and its entanglements with liberalism’s architecture of freedom remained a critical dimension of this system; oceans were central to the reach of 19th-century colonialism and capitalism and their regulation entailed producing and enforcing distinctions between those deemed the captains of industry and those deemed pirates, the work of missionaries and the work of insurgents.

Great Britain was a particularly significant actor in seeking dominion over the Ocean against other colonial powers as well as pirates and other non-state actors. To this end, Great Britain led the effort in utilising maritime law and its navy to apprehend rogue actors who continued the slave trade—actors like Ruiz and Montez of Amistad infamy. Prize law played a particularly interesting role. If the slave trade was driven by the political economy of the triangular trade in the previous century, in the 19th century the micro-political economy of maritime prizes played a consequential quotidian role in arresting the slave trade. The promise of prize law rewards from forfeited ships and cargo was an incentive for naval officers empowered to conduct search and seizure operations on ships suspected of slave trading. This coordinated set of incentives and disincentives, shaped the material imperatives defining how particular cases unfolded. The Amistad was apprehended because of storm damage not because of its illegal involvement in slave trading, so the rewards were not governed by prize law but by maritime salvage law. The promise of salvage is likely to have motivated Gedney’s boarding of the Amistad off the shores of Long Island, and the added profit from the valuing of slaves is likely to have motivated the capture of Senge and his partners. In fact, he may have towed the ship to Connecticut rather than New York because slavery remained legal in Connecticut (while it had been abolished in New York over ten years prior to the Amistad rebellion) and Connecticut officials may have calculated the value of slaves into their accounting of the cargo. The fact that the court ruled that Senge and his cohort were free men and women meant that their market value became irrelevant to Gedney’s property claims. Nevertheless, their racialised subjectivity remained crucial in the micro distributions of wealth and property. Race rendered their bodies precarious—hovering perilously between being subjects and objects. This precarity meant that in some jurisdictions they could potentially be prize or salvage, but in no jurisdiction would they be beneficiaries of a prize claim—this despite the fact that to the extent that prize money was intended to deter illegal trading on the high seas, Senge and his comrades were the most eligible because they fought Ruiz, Montez and the men who were operating the slave trade on the Amistad.

In sum, the model of freedom at stake in the prohibition of the slave trade was shaped first, by the juridical progress narratives embedded in the Mixed Commissions and other institutional arrangements; second, by the discourses